Court of Appeal for Ontario

Citation: R. v. Durette, 2014 ONCA 747 Date: 2014-10-29 Docket: C58760

Before: Cronk, LaForme and Hourigan JJ.A.

Between:

Her Majesty the Queen Respondent

and

Richard Durette Appellant

Counsel: Bernadette Saad and Lucy Saunders, for the appellant Christopher Greene, for the respondent

Heard: October 20, 2014

On appeal from the sentence imposed and the forfeiture order made on November 29, 2012 by Justice John R. McIssac of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant pleaded guilty to possession of cocaine for the purpose of trafficking. In addition to imposing a sentence of 17 months and 14 days’ custody, the sentencing judge ordered that the appellant’s van, cellular phone and $730 in cash be forfeited as offence-related property pursuant to s. 16 of the *Controlled Drugs and Substances Act*, S.C. 1996, c. 19.

[2] The appellant submits that the trial judge erred in: (i) failing to provide sufficient reasons for the sentence imposed and for the forfeiture order; (ii) misapprehending the applicable range of sentences; (iii) imposing a sentence that was unfit in the circumstances and that did not take into account the totality principle; and (iv) making a forfeiture order that was unreasonable and unsupported by the evidence.

[3] First, we see no basis to interfere with the sentence imposed. While the sentencing judge’s reasons were brief, they were sufficient given the narrow issues and the detailed submissions of counsel. The sentencing judge specifically noted the aggravating factors of the appellant’s related record and the fact that he was on interim release for the same offence when he committed the current one.

[4] Second, we are also not satisfied that the sentencing judge misapprehended the applicable range of sentences. When he observed that the Crown could have requested a penitentiary sentence well in excess of two years, the trial judge was simply noting that, given the aggravating factors, the Crown could have sought a sentence above the applicable range.

[5] Third, the sentence imposed, which is within the six-month to two-year range agreed upon by both parties, is fit for a repeat offender who had previously served three custodial sentences for the same offence, including a longer penitentiary sentence, and who committed the current offence while on bail for the same offence.

[6] We would also not give effect to the appellant’s submission that the sentencing judge was obliged to consider the totality principle. The other trafficking charge, for which the appellant was tried and convicted prior to his plea in this case, was wholly unconnected to the charge in the present case.

[7] With respect to the forfeiture order, the sentencing judge released brief written reasons, wherein he stated that the circumstances in this case were virtually identical to those prevailing in R. c. Gagnon, 2009 QCCA 1667, which he found to be persuasive.

[8] The Crown submits that this was a reasonable conclusion. It also argues that because the appellant pleaded guilty to the offence of possession for the purpose of trafficking and transported the cocaine in his van, it has met its onus under s. 16 of the *Controlled Drugs and Substances Act* of establishing, on a balance of probabilities, that the van is offence-related property.

[9] The term “offence-related property” is defined in s. 2(1) of the *Controlled Drugs and Substances Act* as follows:

“offence-related property” means, with the exception of a controlled substance, any property, within or outside Canada,

(a) by means of or in respect of which a designated substance offence is committed,

(b) that is used in any manner in connection with the commission of a designated substance offence, or

(c) that is intended for use for the purpose of committing a designated substance offence;

[10] To meet this definition, there must be some evidentiary basis linking the property to be seized to the designated substance offence. In the present case, the only facts read in at the time of the guilty plea that related to the offence were that the police received information from a confidential informant that the appellant was in possession of a large quantity of cocaine and that he was operating his van en route to his residence. When and where the appellant obtained the cocaine was not specified. Nor did the appellant admit in his plea that any of the seized property was used in the commission of the designated offence.

[11] A factual nexus between the van and offence could be established had there been evidence, for example, that the appellant had used the van to acquire the drugs or that drugs were hidden in the van itself. However, there is, at most, an admission that the drugs were transported in the van, but no evidence that the transportation was undertaken in order to distribute the drugs to other parties.

[12] Thus, the facts of the present case are distinguishable from those in Gagnon. There, the drugs were found in a compartment of the vehicle and were of such a quantity that the accused would not have been able to transport them on his person. This, along with the fact that clear plastic baggies and a white substance were also found inside the vehicle, evidenced that the vehicle was linked to the offence of possession for the purpose of trafficking. In contrast, in this case, the drugs, cash and cellular phone were found on the appellant’s person – not in the van. Further, there was no evidence linking any of the seized items to a drug transaction. The appellant was arrested while he was en route to his home.

[13] As a result, we conclude that there was insufficient evidence in this case to ground a forfeiture order for the van and that the Crown did not meet its onus of establishing, on a balance of probabilities, that the van was offence-related property.

[14] With respect to the cellular phone and cash, the Crown concedes that the sentencing judge mistakenly concluded that the forfeiture of these items was not contested by the defence and, consequently, that it falls to this court to determine whether they are properly the subject of a forfeiture order.

[15] In our view, the Crown has not met its onus of establishing, on a balance of probabilities, that either of these items is offence-related property. There is no evidence, such as text messages or emails on the phone, which tie it to the offence. Similarly, there is nothing in the evidence that establishes that the cash found on the accused is in any way connected to the offence.

[16] For the foregoing reasons, leave to appeal sentence is granted, the sentence appeal is dismissed, and the forfeiture order is set aside.

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”

“C. William Hourigan J.A.”